Tuesday, 26 July 2016

Written Opinion on RCEP to South Korean Government and Request for a Face-to-Face Meeting and Public Hearings

Written Opinion on RCEP to South Korean Government and Request for a Face-to-Face Meeting and Public Hearings

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This is
English translation of the written opinion (Korean) submitted to the Korean
Ministry of Trade on July 25, 2016. For PDF file, click here (Korean text, English text).

Pursuant to
Article 8 of the Act on the Procedures for Concluding Commercial Treaties and
the Implementation Thereof, we, the undersigned organizations and individuals,
submit a written opinion on RCEP negotiation. We also call for a face-to-face
meeting with the Korean negotiators and public hearings on RCEP.

1.Principle of Free and Fair
Trade

According
to the Foreign Trade Act, the principle of foreign trade of South Korea is a free
and “fair” trade in accordance with the treaties on trade entered into and
promulgated pursuant to the Constitution and the generally accepted
international laws and regulations (Article 3(1)). Further, under Article 3(2)
of the Act, Korean government has to apply such restrictions as provided by any
treaties on trade to which South Korea is a party and by the generally accepted
international laws and regulations.

Unfortunately,
the Korean negotiators failed to abide by the free and fair trade principle and
negotiate RCEP in a way that violates treaties on trade and the generally
accepted international laws and regulations.

2.RCEP IPR Negotiation

2.1. Relevant Treaties on Trade and International Laws

TRIPS Agreement
ensures the sovereignty of states to determine the appropriate method of
implementing TRIPS provisions within their own legal system and practice
(Article 1). Further, TRIPS Agreement provides that “the protection and
enforcement of IPRs should contribute to ... a balance of rights and
obligations” (Article 7), and allows states to “adopt measures necessary to
protect public health and nutrition, and to promote the public interest”
(Article 8). Article 31 of TRIPS Agreement sets forth conditions for compulsory
licenses of patented inventions. It is a national sovereignty that under which
circumstances the states may grant the compulsory licenses. Long ago such an
autonomy was confirmed by the multilateral trade organization in the
Declaration on the TRIPS Agreement and Public Health in 2001 WTO Ministerial
Conference (“Doha Declaration”).

Both the
Universal Declaration of Human Rights (Article 27) and the International
Covenant of Economic, Social and Cultural Rights (Article 15) recognize
everyone’s right to science and culture, which includes the right to take part
in cultural life and the right to enjoy benefits of scientific progress and its
applications, in addition to the author’s right. The Korea National Human
Rights Commission conceptualizes such a right under the rubric of the “right to
information and culture.” The United Nation’s human right body has adopted two
important reports of the Special Rapporteur in the field of Cultural Rights in
2014 and 2015.

In its
Copyright Report of 2014 (A/HRC/28/57), the UN body, from the human rights
perspectives, calls for an “attention on important themes that may be lost when
copyright is treated primarily in terms of trade: the social function and human
dimension of intellectual property, the public interests at stake, the
importance of transparency and public participation in policymaking, the need
to design copyright rules to genuinely benefit human authors, the importance of
broad diffusion and cultural freedom, the importance of not-for-profit cultural
production and innovation, and the special consideration for the impact of
copyright law upon marginalised or vulnerable groups.” (¶ 90). And the
Copyright Report recommends that “[I]nternational copyright instruments should
be subject to human rights impact assessments and contain safeguards for
freedom of expression, the right to science and culture, and other human
rights” (¶ 94), and requires that the copyright treaties “never impede the
ability of States to adopt exceptions and limitations that reconcile copyright
protection with the right to science and culture or other human rights, based
on domestic circumstances” (¶ 94).

Secondly,
the UN human rights body, in the Patent Report of 2015 (A/70/279) makes clear
that “[S]tates have a human rights obligation not to support, adopt or accept
intellectual property rules, such as TRIPS-Plus provisions” (¶ 104), and “[S]tates
should refrain from pressuring other States to adopt TRIPS-Plus provisions or
to otherwise forego the use of TRIPS-compliance flexibilities” (¶ 105).

2-2. Problems of Korean Positions in RCEP Negotiation

The Korean
negotiators have pushed most strongly the TRIPS-plus provisions that are
recommended to refrain from by the UN human rights body. So Korean government
directly breaches the domestic law as well as the generally accepted and
legally binding international human rights laws. Therefore, all of the
TRIPS-plus proposals made by the Korean negotiators should be discarded.
Instead, the Korean negotiators have to pursue the human rights compliant rules
in the RCEP negotiation.

2-2-1. General Provision and Basic Principles

Korean
negotiators opposed the general provision for objectives itself but changed its
position to oppose certain languages proposed by other negotiators and suggest
highly biased languages. According to the Korean suggestion, the objectives of
RCEP IP chapter is “to provide certainty for rights holders and users of
intellectual property over the protection and enforcement of intellectual
property rights.” This is far away from TRIPS, which has been condemned as unduly
ratcheting-up the level of IPR protection globally, and highly skewed by overly
emphasizing protection and enforcement of IPRs. The Korean proposal is neither “fair”
nor compliant with the international human rights norms.

2-2-2. Grace Period for Patents (Article 5.5)

The Korean
negotiators propose the grace period for twelve months. This proposal may bring
a conflict with the right to science and culture because an inventor can
monopoly and exclude others from using any invention even after it was made
public for up to one year.

The Korean
negotiators opposed the provision for TRIPS Flexibilities on Compulsory
Licenses and LDC Extensions. They go directly against the Doha Declaration and
the recommendations of the UN human rights body. During the Korea-US FTA
(KORUS), the US negotiators proposed to limit the circumstances under which
compulsory licenses might be granted but the Korean counterparts strongly opposed
it. It is hard to understand why the Korean
RCEP negotiators are reluctant to say yes to the proposal of TRIPS flexibilities
on compulsory licenses.

2-2-4. Patent Term Restoration (Article 5.13)

The Korean
negotiators pushed patent term extensions for delays in patent prosecution and in
drug approval process. The patent term extension is the typical TRIPS-Plus
provision, its harmful impact on public health having been widely pointed out,
and criticized by MSF as infringing patients’ access to medicines living in
India and ASEAN countries.[1]
In particular, Korea is the single sponsor of patent term extension for delay
in patent examination process. This kind of patent term extension may increase
a work load of patent examiners, producing poor quality patent, undermining
social use of technologies and bringing a conflict with the right to science
and culture.

Data
exclusivity was introduced in Europe as a supplemental system for countries
where a product patent was not allowed. In Korea, data exclusivity was imported
by the trade pressure of Europe after Korea unilaterally accepted almost all of
the U.S. demands in 1986. Unlike the Korean proposal on data exclusivity in
RCEP negotiation, our domestic data exclusivity system is expediently operated in
part of a new medicine review policy. However, Korean data exclusivity has
little to do with safety of new drug: it plays a role of barriers preventing
affordable generic medicines from entering market and reinforces market
exclusivity of new medicines. Data exclusivity is harmful as it undermines
access to medicine, raises the drug expenditure, reduces competition of
pharmaceutical products, and forces unethical repeat of clinical trial.
Therefore, Korean negotiators have to stop requiring data exclusivity in RCEP
IP chapter.

The Korean
negotiators, again solely, proposes the notorious “copyright three-strike rule”.
Effective measures to curtail repetitive infringement of copyright means the
three-strike rule codified in the Korea Copyright Act. The Korea Human Rights
Commission recommended to repeal such a rule and international civil society
groups also submitted the same opinion to the Korea National Assembly. And a
bill to repeal the three-strike rule was introduced in the previous session of
the National Assembly. So the proposal of Korean negotiators should be
withdrawn as it is anti-human rights and encroaches legislative power of the
National Assembly.

2-2-7. Overall Stance of the Korean Negotiators

The
positions of Korean negotiators in RCEP are based upon KORUS IPR text. However,
the KORUS IPR text was an outcome of Korean surrender for the purpose of
concluding the whole KORUS pact. We know that during the KORUS talk, the Korean
IPR negotiators took a firm stand against almost all of the US proposals. It is
a shame to see that now the Korean RCEP negotiators put forward what they
believed unacceptable. This is nothing more than representing the interests of
US industry and carrying out an agency role of USTR.

3.RCEP Investment Negotiation

According
to Article 103 of the Charter of United Nations that Korea has ratified (Treaty
No. 1059), obligations under the Charter prevails in the event of a conflict
with obligations under any other international agreement. Articles 55 and 56 of
the Charter requires international relations of Korea with other nations to be
based upon “respect for the principle of equal rights and self-determination of
peoples” “with a view of the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations.” Further, Korea, as a
member of UN, commissioned to promote “higher standards of living, full employment,
and economic and social progress and development,” “solutions of international
economic, social, health, and related problems, and international cultural and
educational co-operation.” However, Korean proposals for RCEP Investment
chapter is far from these principle and aim, and leaned to much to the private interests
of investors and special treatment for investment.

International
investment agreements clash human rights in diverse range of fields, which are
hard to enumerate as the concept of investment is too broad and investors are
endowed too many weapons to bring states to private arbitration tribunals. For this
reason, the UN Human Rights Council adopted a report of an independent expert
in 2015 (A/HRC/30/44), which recommends actions States to take on the basis of
Article 103 of the Charter of United Nations. Some of them, Korean negotiators
have to pay attention, are (in paragraph 62):

(g)States must ensure that
international investment agreements do not undermine their ability to implement
the industrial and macroeconomic policies needed for development, which is an
essential objective of United Nations “constitutional” law, and take steps to
revise promptly existing bilateral investment treaties and free trade
agreements with negative effects on human rights. States should test existing
bilateral investment treaties and free trade agreements for compliance under
their respective Constitutions, and revise or terminate said agreements
pursuant to the Vienna Convention on the Law of Treaties when they conflict
with human rights obligations;

(j)States should take
measures to ensure implementation of the guiding principles on human rights
impact assessments of trade and investment agreements and make them legally
binding in the domestic legal order;

(o)States should include
in bilateral investment treaties and free trade agreements specific provisions
on the legal responsibility of transnational corporations and investors to make
reparation for environmental, health and other damage caused by their
activities, and strengthen domestic criminal law provisions so as to address
personal criminal liability of investors and corporation executives for environmental
harm or gross human rights violations. To this end, States should establish a
monitoring mechanism to assess investor compliance with human rights;

In light of
these recommendations, the Korean negotiators have to stop bringing the KORUS
Investment text to the RCEP negotiation table. Investors, even when they are
Korean, have no reason to be protected regardless of public policy of RCEP
countries and the international human rights norms. Investors are also a member
of community and society and obliged to act for the benefit of the whole community.
Ensuring the public interests has to be main topic of investment agreement.

Like the
IPR negotiation, the Koran negotiators are proposing for the investment chapter
the same languages as KORUS. We believe this is the case in other sectors,
details of which have been kept confidential from the general public. This
strategy of Korean negotiators is nothing but serving USTR’s strategy of
creation of chain reaction aiming at the domino effect. The former USTR, Robert
Zoellick called this strategy “competitive liberalization” for the objective of
leveraging bilateral agreements in order to influence regional and multilateral
agreements. One of the key criteria of US in selecting an FTA partner was its
capacity to influence other countries. The broadest goal of bilateralism in the
US playbook is to generate a measurable effect beyond the targeted country. One
way to achieve this goal is the creation of a chain reaction, whereby bilateral
agreements create a domino effect that transplants US patent norms beyond the
original members. As the former USTR Robert Zoellick explained, the
“idea is to start out with the leading reformers […] and then try to connect
others to it over time”. The hope is for the new partners to actively negotiate
similar provisions in their treaties with third countries.[2]
It is a disgrace that Korean negotiators act exactly a USTR follower. Even worse
is that by doing so the Korean negotiators, public servant, ignores our
domestic law and standards of the international human rights instruments.

4.Calling for Face-to-Face Meeting
and Public Hearing

Korean
negotiators have to establish negotiation strategy in a transparent and
democratic process. However, we know that such a process is lacking. Who and in
which process have determined the Korean proposals in the RCEP IPR and
investment negotiations are crucial to us and we ask the Ministry of Trade to
hold a public hearing and face-to-face meetings with civil society members. We
hope they take place before the 14th round of August 15 to 19 in
Vietnam.